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Don’t put it in writing

The Michigan Supreme Court has denied an appeal for a man who says that a pornographic story he wrote should never have been used against him at his trial when he was accused of molesting his granddaughter.

In a concurring statement in People v. Novak, Justice Stephen J. Markman wrote, “I concur in this Court’s order denying leave to appeal because the Court of Appeals, in my judgment, did not err in concluding that the trial court did not abuse its discretion in admitting the ‘minor child incest’ story written by defendant.”

George Novak had written what he called a “manual” and titled it “Johnny’s Education.” His lawyer, Valerie R. Newman of the State Appellate Defender office, contends that it was a work of fiction, and not a window into the mind of a sexual deviant. In the story, a man has sexual contact with his daughter and nieces.

Novak, in real life, was charged with criminal sexual conduct after his granddaughter said that he had touched her inappropriately.

According to a Michigan Supreme Court summary of the case, Novak’s 9-year-old granddaughter testified at trial that he touched her breasts and, while clothed, touched his “front butt,” which she said was his genital area, to her “back butt.”

The trial court also ruled that the prosecutor could admit into evidence the pornographic story. Novak was convicted and sentenced to 20-40 years in prison.

The Michigan Court of Appeals agreed with the trial court. The Michigan Supreme Court in a 4-3 decision confirmed.

Justice Marilyn Kelly, however, said in her dissent:

The prosecutor brought it up on multiple occasions during trial. Not only did she ask every witness about the story, she quoted lengthy portions of it both during her opening statement and during her closing argument. She had a police detective reread a portion of the story to the jury. …

“In order for evidence to be properly admitted under Rule 404(b), the probative value of the evidence must not be substantially outweighed by unfair prejudice. In this case, the danger of unfair prejudice substantially outweighed the probative value, if any, of defendant’s story. I question the story’s probative value. Many people write fictional fantasies but never act them out.”